If such delay has resulted in prejudice to the complainant it is of her own making. Complainant, however, contends that in Lister v. Lister, 47 R.I. 366, this court held that laches is applicable not only to delay in instituting a suit but also to delay in its prosecution. We cannot see how this helps her in the circumstances of the case at bar.
Lee v. Simpson, 134 U.S. 572, 10 S.Ct. 631, 33 L.Ed. 1038, 72 C.J.S., Powers, ยง 40(c); 91 A.L.R. 434; 127 A.L.R. 249. And the rule is corollary to another rule of ancient and venerable origin to the effect that if one possessed of an interest and a power makes a conveyance of the subject matter without reference to the power he is presumed to have conveyed only his interest and not to have executed his power. Barnard v. Moore, 71 Colo. 401, 207 P. 332; Mutual Life Ins. Co. v. Shipman, 119 N.Y. 324, 24 N.E. 177; Weinstein v. Weber, 178 N.Y. 94, 70 N.E. 115; Lardner v. Williams, 98 Wis. 514, 74 N.W. 346; Phillips v. Brown, 16 R.I. 279, 15 A. 90; Lister v. Lister, 47 R.I. 366, 133 A. 437. This so-called power plus interest rule is another recognition of the requirement for manifestation of an intent to exercise the power. See In re Smith's Will, 279 App. Div. 140, 108 N.Y.S.2d 290.
In the past, typical examples of prejudice that have supported the defense of laches have been the loss of evidence, a change of title, or the death of a key witness. Chase v. Chase, 20 R.I. at 204, 37 A. at 805; Lister v. Lister, 47 R.I. 366, 133 A. 437 (1926). Evidence that a defendant expended sums of money in constructing improvements has also been held to be sufficient prejudice to support a finding of laches.
The ruling in Johnston v. Standard Mining Co., 140 U.S. 360;13 S.Ct. 585; 37 L.Ed. 480, is to the effect that the mere institution of a suit does not of itself relieve a person from the charge of laches; and if he fails to prosecute it with diligence the consequences are the same as if it had never been instituted. That rule is followed in Johnston v. City ofHartford, 96 Conn. 142; 113 Atl. Rep. 273; Lister v. Lister,47 R.I. 366; 133 Atl. Rep. 437; Stewart v. Grant, 126 Me. 195;137 Atl. Rep. 63. The circumstances surrounding the institution of that suit with the accompanying notice of lis pendens, and the failure to prosecute it with reasonable diligence warrants the inference that the parties thereto abandoned it. That conclusion, in effect, removes the cloud or clouds from the marketability of the complainant's title to the premises in question.